Judicial Virtues and Vices: Thinking About Character Lawrence Solum September 2010.

Judicial Virtues and Vices: Thinking About Character Lawrence Solum September 2010

Outline Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies Implications for Judging

Outline Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging

Two Antinomies The Antinomy of Rights and Consequences – Deontological approaches—Dworkin – Consequentialist approaches—Kaplow/Shavell The Antinomy of Realism and Formalism – Legal Realism—Llewellyn, Kennedy – Legal Formalism—Blackstone, Scalia The state of legal theory

Rights versus Consequences Louis Kaplow Steven Shavell The legal analyst should only consider welfare! By “welfare,” Louis means a Bergson- Samuelson Social Welfare Function, such as

Rights versus Consequences Hercules will only consider arguments of principle!

Rights versus Consequences Two mutually exclusive and inconsistent views of normative legal theory.

Two Antinomies The Antinomy of Rights and Consequences – Deontological approaches—Dworkin – Consequentialist approaches—Kaplow/Shavell The Antinomy of Realism and Formalism – Legal Realism—Llewellyn, Kennedy – Legal Formalism—Blackstone, Scalia The state of legal theory

Realism versus Formalism William Blackstone,Karl LlewellynAntonin ScaliaSonia Sotomayor The rule of law is a law of rules! The appellate court is where policy is made.!

Realism versus Formalism On the one hand, we are all realists—we all seem to believe in an instrumentalist conception of law. Policy talk is ubiquitous. On the other hand, formalist intuitions are stubborn. Some interpretations are out of bounds. We may want the law be sufficiently indeterminate to conform to our ideals, but once it does conform, we want it to be “hard law.”

The State of Legal Theory Contemporary legal theory is characterized by two opposing tendencies with respect to the two antinomies. Tendency One: Perpetual warfare, examples: – The debate over Kaplow & Shavell’s “Fairness versus Welfare.” – The debate over CLS & the indeterminacy thesis in the 1980s. Tendency Two: Mutual disengagement, after these debates, everyone goes on as if they had not occurred.

Outline Two Antinomies Virtue Ethics Virtue Jurisprudence Aretaic Theory of Judging Rules & Equity Dissolving the Antinomies The Implications for Judging Aristotle’s Ethics Contemporary Virtue Ethics

Aristotle’s Ethics Virtue ethics dominated moral philosophy until the modern period. Focus on Aristotle, historical importance & influence on contemporary virtue ethics. Other approaches to virtue, e.g. Stoics, Hume

Aristotle’s Ethics Eudaimonia The Function Argument The Virtues – Intellectual Virtues Sophia (theoretical wisdom) Phronesis – Moral Virtues Courage, good temper, justice Practical Wisdom: The ability to size up the situation, moral vision. The phronimos sees what is morally salient & what responses are workable. Translated as happiness, but not a feeling of well- being. “Faring well and doing well.” Highest humanly achievable good is a life of rational activity in accord with the human excellences. Disposition to the mean with respect to a morally neutral emotion, i.e. fear. Excess = cowardice. Deficiency = rashness. Mean=courage.

Contemporary Virtue Ethics Essay, “Modern Moral Philosophy” Critique of deontology & consequentialism. Suggestion that we turn to Aristotle. Elizabeth Anscombe Leads to Philippa Foot’s “Virtues & Vices.”

Contemporary Virtue Ethics No decision procedure for ethics, contra utilitarianism or Kantian ethics. Replace Aristotelian science with contemporary science. Excise Aristotle’s errors about women & slaves. Take into account contemporary metaethics. The complexity of human life outruns any rule or procedure for deciding how to act.

Contemporary Virtue Ethics Rosalind Hursthouse Christine Swanton Nancy Sherman Julia Annas

Virtue Jurisprudence An Aretaic Theory of Legislation – Eudaimonia & virtue as the end of law. An Naturalistic Theory of Law and Justice – The aretaic spin on the natural law/positivism debate. An Aretaic Theory of Judging – An account of judicial virtue and vice.

Aretaic Theory of Judging Uncontested Judicial Virtues – Judicial courage – Incorruptibility – Judicial temperament – Judicial intelligence Contested Judicial Virtues – Judicial wisdom – Justice We need a theory of the virtues of “judicial wisdom” and “justice”. No one thinks judges should be cowardly, corrupt, stupid, and have anger management problems. Every plausible normative theory of judging can endorse these virtues. These virtues will be controversial. Different normative theories of justice will offer different conceptions of justice and practical wisdom.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise Nomimos – An excellent judge is Nomimos. – The Greek “nomos” is more encompassing than our word “law”—includes social norms. Phronimos – An excellent judge possesses practical wisdom. – “Legal vision”—ability to size up the situation, perceive what is salient.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise Nomimos—Justice – An excellent judge is Nomimos. – The Greek “nomos” is more encompassing than our word “law”—includes social norms. Phronimos—Judicial Wisdom – An excellent judge possesses practical wisdom. – “Legal vision”—ability to size up the situation, perceive what is salient. Two conceptions of the virtue of justice: Justice as fairness & Justice as lawfulness. The fairness conception requires reliance on private, first- order normative judgments. The lawfulness conception permits agreement through reliance on public, second-order judgments (nomoi).

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise Nomimos—Justice – An excellent judge is Nomimos. – The Greek “nomos” is more encompassing than our word “law”—includes social norms. Phronimos—Judicial Wisdom – An excellent judge possesses practical wisdom. – “Legal vision”—ability to size up the situation, perceive what is salient.

The Excellent Judge is Nomimos & Phronimos—Just and Practically Wise Nicolas Poussin. The Judgment of Solomon (1649) Solomon (not Hercules) is the model of the virtuous adjudicator.

Statement of the Theory A judicial virtue: – Naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make virtuous decisions. – Content identified by a theory of the judicial virtues. A virtuous judge: – A judge who possesses the judicial virtues. A virtuous decision: – A decision that would characteristically be made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision. A lawful decision: – Identical to a virtuous decision.

Rules & Equity Rule application – Phronesis is required for correct application of the rules. Rules do no apply themselves. – Virtue jurisprudence accounts for the fact of lawful judicial disagreement. Equity – Life outruns codification. – Phronimos can do “equity” in the Aristotelian sense. Dworkin argues that there is a uniquely correct solution to each and every legal problem, but in a wide range of cases, competent lawyers believe that there is more than one “legally correct” resolution.

Dissolving the Antinomies The Aretaic response to the antinomy of rights and consequences. – Similar to pragmatist absorption, but – With a theoretical foundation. The Aretaic response to the antinomy of realism and formalism. – They both tell part of the story. – Practical wisdom and justice in a complex relationship. – Not mechanical rule application; informed by legal vision. – Equity not the imposition of personal preferences.

Implications for Judging The importance of judicial selection The virtue of justice – the values of judges matter, because lawfulness is a value. The virtue of practical wisdom – the most important stage in the process occurs is not decision but “sizing up the case” – perception. Character!

Virtue Ethics Virtue Jurisprudence An Aretaic Theory of Judging Nomimos & Phronimos Modern Moral Philosophy Solomon, not Hercules

Questions Action Guiding? Wicked Societies Equality Rival Theories of Equality Internalization Test Slaves & Women Nomoi Indeterminate Nomoi Disputed Pluralism Relativism Fact-Value Distinction Legal Realism Situationalism Moral Realism Sources of the Nomoi Positivism/Natural Law Communitarianism Liberty Pragmatism Cash Value Social Construction More

More Questions Aristotle on Justice Post-Marxist Gramscian Normative Economics Positive Economics Decision Procedures Ideal vs Nonideal Theory Success Conditions “I Don’t Buy It” “It takes a theory to beat a theory” Political Valence Happiness & Morality Positive or normative Fairness Conception Lawfulness Conception Baselines Judicial Disagreement Spock, McCoy, and Kirk Hercules & Solomon

Is virtue jurisprudence capable of guiding action? “Do as a virtuous judge would do?”—how does that provide guidance for action? – Analogous to problem with virtue ethics Several solutions: – Hursthouse: The phronimos provides the standard for action. (Common sense version.) – Swanton: The virtues provide the standard for action. “V rules.” (Act courageously.) For judges, the relevant virtue, justice, refers us to the nomoi, that is, to the social norms and laws of our community. But don’t expect a decision procedure.

The Nomoi in Wicked Societies 3 Cases Well functioning society & ideal theory – Problem does not arise in a well-functioning society. – Problem bracketed by ideal theory. Radically dysfunctional society – Phronimos will do the best she can under the circumstances. – Identifying the true nomoi. Mixed case. Reasonably well-functioning society with isolated wickedness. – Identify the wicked norms, act wisely. – Limit the damage to the rule of law. Relationship to slaves & womenInternalization test EqualityRival Theories of Equality

Equality Equality and aretaic theories of legislation – End of law is flourishing of humans & their communities. Aretaic conception of equality – Martha Nussbaum & Amartya Sen. – Equality of capacities for valuable functioning. – Tradeoffs depend on complex and familiar factors, including level of economic development, Internalization test: true nomoi must be capable of internalization by the phronomoi Internalization test Comparison with rival theories (next slide)next slide Relationship to slaves & women Nussbaum Sen Internalization test

Comparison with Rival Theories of Equality Aretaic equality versus utilitarian equality – Each counts for one but only one & declining marginal utility of resources (wealth & income). – Preferences (or other conceptions of utility) are too thin. Preferences can be shaped by culture. Aretaic equality versus deontological equality—the “equality of what question” – Rawls’s two principles, equality of wealth & income, equality of welfare, equality of opportunity for welfare, equality of resources, equality of opportunity for resources. Relationship to slaves & womenInternalization test

Aristotle’s Views on Slaves & Women Very Bad! But: – These views are inconsistent with modern science & the deep premises of his theory. – Nothing in contemporary virtue ethics depends on these views. And: – His view of slavery had the consequence that almost all slavery was unjustified in Athens – His view of justice in the family was progressive for 4 th Century B.C. Greece. Also, distinctive virtues of the oppressed. Relationship to equality Distinctive virtues can be developed through emancipatory praxis. Lawrence B. Solum, Virtues and Voices, Chicago-Kent Law Review 111 (1991). Internalization test

Internalization Test for True Nomoi This test is internal to my theory & not Aristotle. To qualify as a nomoi, a social norm must be internalizable by fully virtuous humans, i.e., the phronomoi. To be internalizable, a nomos must be consistent with flourishing, i.e., the development and exercise of the virtues. Norms of exclusion and repression are inconsistent with flourishing. Exemplary case: Phronimos is a member of the excluded group. Example: Could Frederick Douglass internalize the norms that supported slavery? Relationship to slaves & womenInternalization test EqualityRival Theories of Equality

Indeterminacy of the Nomoi Distinction: – Indeterminacy – Determinacy – Underdeterminacy Two roles for positive law: – Specification – Resolution of conflict Radical indeterminacy would be a problem for any normative theory of law. The nomoi do underdetermine results: social norms vary in vagueness.

Nomoi are disputed Yes and no. – Most social norms are uncontested most of the time. – But there can be large and persistent disputes, especially given the fact of pluralism. One role of positive law is to settle normative disputes. This requires sufficient agreement on social norms recognizing legitimate authority.

Pluralism Objection: – Fact of pluralism. – “Virtue ethics” could be characterized as a “comprehensive conception of the good.” – Rawls/Solum: Legal reason should be public reason. Three strategies: – Virtue ethics & virtue jurisprudence are consistent with pluralism—Julia Annas. – Virtue ethics & virtue jurisprudence can be formulated so as to rely only on thin conceptions of virtue, happiness, etc. – Pluralism cannot be taken as a given for the purposes of ideal theory.

Relativism Different ways in which relativism could be relevant: – Descriptive relativism—no argument yet. – Metaethical relativism: no truth about morality. – Normative ethical relativism: good is relative to community norms. – Epistemic value of knowing about relativism. Ubiquity of virtue talk across normative communities. The lawfulness conception of the virtue of justice absorbs some but not all of relativism. Epistemic modesty is appropriate but not decisive.

Fact-Value Distinction Three distinct points: – David Hume’s argument about fact premises & value conclusions. – G.E. Moore’s open-question argument. – Facts are empirically verifiable, values are matters of preference or emotion. Moral propositions are not “truth apt.” Answers: – Hume’s argument is irrelevant. – Moore’s argument is contested in metaethics. – Noncognitivism Noncognitivist metaethics! 1.Crude noncognitivist theories are nonviable. 2.Sophisticated noncognitivist theories make room for normative ethics. 3.Cognitivist alternative— moral propositions are truth apt. Moral Realism

Legal Realism Does virtue jurisprudence add anything to realism? (Qualification: Many realisms.) Reconcptualizations: – Llewellyn’s idea of situation sense is reconceptualized as the virtue of practical wisdom. – Purposive interpretation of statutes is reconceptualized in terms of the relationship between the nomoi and the positive laws. – Rigorous foundations. Differences: – Flourishing versus interests. – Internalization versus instrumentalism. – Level of normative theory versus description of legal practice. Karl Llewellyn These realist insights can be embedded in a rigorous normative theory.

Situationalism What is situationalism? John Doris & Gilbert Harman. Heated debate currently underway. Extreme situationalist claims are untenable. Reasons to trust “folk knowledge” and distrust social science. Experiments were not designed to test sophisticated character theories—wrong kinds of dispositions or character traits. Virtue ethics explains many of the results. Bottom line: commitment to the results of empirical inquiry. Social psychology. Radical situationalism: all humans will perform the same actions in the same situations. Experiments, including Milgram

Moral Realism The Basic Realist Claim: – Morality is not invented, projected, or constructed. Moral Natualism as an interpretation of moral realism. – Michael Thompson & Philippa Foot on “Natural Goodness” – Natural science: biology & ethology. – What are the characteristics of well- functioning humans & human societies? Relationship to fact/value

Sources of the Nomoi Possibilities: – Natural development of human communities. Game theoretic explanations. – Universal moral grammar. Hard-wired, on the analogy of the capacity for language. Criterion: the explanation should be naturalistic. – This criterion rules out “constructivism” or “invention.”

Positivism & Natural Law General strategy: end run around the “what is law” debate. Three kinds of disagreement: – Conceptual—necessary content of the concept of law or “essence”. – Descriptive—whether the law in a particular jurisdiction is best described by natural law theory or positivism. – Normative—whether “law” as a practice should incorporate criteria of normative validity in the criteria for legal validity. Nomos versus law: (1) conflicts between positive law & the nomoi & (2) nomoi that are defective because they fail to serve the function of law. Raz’s Authority Argument

The argument: – Because law claims authority, the validity conditions for law must be content independent. – But virtue jurisprudence does not adopt content independent validity conditions for positive law. – Therefore, virtue jurisprudence is false. The answer: – Raz’s premise about authority is false. It is the nomoi rather than law that are action guiding & it is internalization rather than authority that does the work.

Communitarianism Points of comparison: – Aristotle on the Polis as a “strong community.” – Particular communities as “source of the nomoi.” – Flourishing of individuals and their communities. – Humans are social creatures. Points of difference: – Universal human nature. – No a priori commitment to particular empirical claims about role of communities in flourishing.

Liberty Is virtue jurisprudential essentially opposed to even modest libertarianism? End of law is fostering the acquisition, maintenance, and exercise of the virtues. But: – Role of liberty and autonomy in human development—Mill’s thesis. – Role of liberty in the exercise of the diverse forms of life consistent with the expression of the virtues. And: – The acquisition of the human excellences is a prerequisite for the full value of liberty.

Pragmatism Two forms of pragmatism: – Philosophical pragmatism: Dewey, James, and Pierce. – Legal pragmatism: Richard Posner, the “Prairie Pragmatists,” e.g., Dan Farber. The aretaic reconceptualization of legal pragmatism: – Purge pragmatism of ad hoc particularized judgment. – Provide theoretical foundations. – Retain practical judgment and practical wisdom balance by the rule of law. Phronimos and nomimos. Ad hoc pragmatism without foundations is unsatisfying.

Cash Value William James on Cash Value. Defense of intrinsic value of knowledge & its role in the legal academy. Quinean holism about the web of belief: – Connection of the core to the edge. – Normative theory is relatively near to the core. Particular applications: reasonable person standard—Feldman. QuineFeldman “[I]f you follow the pragmatic method, you... must bring out of each word its practical cash-value, set it at work within the stream of your experience.”

Social Construction Two Questions: – Is human nature “socially constructed”? – Are the nomoi socially constructed? Three perspectives: – Aretaic theory (neutral between conceptions of virtue) – NeoAristotelian Virtue Ethics (Hursthouse) – Natural Goodness (Foot/Thompson) No, humans like other creatures have natural characteristics. We are social, rational, communicating beings. Empirical question! --Universal moral grammer --Natural solutions to problems of interaction --Contingency, path- dependence

Aristotle on Justice Aristotle presents both the “fairness conception” and the “lawfulness conception”. NE, Book V. Opinion about the nature of justice reveal ambiguity. Possible implications of ambiguity: – Two virtues. – Resolve the conflict in opinion. – But not an essentially ambiguous virtue. From the point of view of virtue jurisprudence, the task is not exegesis of Aristotle.

The Standard Post-Marxist Gramscian Question In the capitalist mode of production, bourgeoisie values provide the content of the nomoi. Isn’t justice-as- lawfulness simply the rationalization of hegemony! More

Gramsci & Virtue Jurisprudence The theory of natural goodness rightly rejects Gramsci’s assertions that: – There is no human nature. – All concepts are historical, contextual, and arise from social relations. Virtue politics could embrace Gramsci’s theory of “norm reformation” that recognizes that existing norms are sticky and must be transformed from within. Gramsci embraced Antonio Labriola’s notion that Marxism is a “critical theory” every element of which is subject to revision.

Comparison with Normative Law & Economics Normative law & economics is a family of theories—welfarism, Kaldor-Hicks, pareto efficiency, etc. Exclusive versus inclusive versions. – Only welfare counts—exclusive. – Welfare counts too—inclusive. Virtue jurisprudence absorbs inclusive normative law & economics but rejects exclusive variants.

Comparison with Positive Law & Economics Virtue jurisprudence incorporates a moral psychology. Ends can be rationally chosen & preferences can be revised. – Gerald Dworkin’s view of autonomy, second order preferences and beliefs. Akrasia or weakness of will. This may or may not conflict with the “revealed preference” assumption. Is akratic action contrary to preference?

A Decision Procedure for Ethics Qualification: Many deontologists have taken this criticism on board, e.g. Barbara Herman. Why not a decision procedure? Complexity thesis: – Life outruns rules. General and abstract versus particular and concrete. – Example: Attempts to formalize “threshold deontology” are unsatisfactory. Role of practical wisdom (phronesis).

Ideal versus Nonideal Theory Virtue jurisprudence as ideal theory: – Assume good faith efforts at compliance by citizens and officials (judges, executives, legislators). Virtue jurisprudence as nonideal theory: – Begin with current conditions. – Strategic action (ideological judging & judicial selection). – Is transition possible?

What are the success conditions? What considerations bear on the decision to accept a large-scale normative theory of law? Two strategies: – The Method of Geometry—deduce from self-evident principles. – The Method of Reflective Equilibrium—coherence with our considered judgments about: metaethics, moral and political philosophy, normative theories of doctrinal fields. What counts as success? Sweep the field? On the table?

“I don’t buy it.” What does “I don’t buy it” mean? Two standards: – The standard of rhetoric: theory acceptance depends on persuasion. – The standard of philosophy: theory evaluation depends on the arguments. It is possible to be in the “psychological state” indicated by “I don’t buy it,” even without answers to the arguments. But this is not an appropriate standard for academic discourse.

“It takes a theory to beat a theory.” Assumptions: – There are sufficient arguments to put the theory on the table. – The topic at hand is theory apt. Then: Theory comparison is required. What are the rivals of virtue jurisprudence: – Normative theories: consequentialism, deontology. – Antifoundationalist theories: legal pragmatism, legal particularism.

Political valence Is virtue jurisprudence liberal/progressive or illiberal/conservative? First answer: wrong level of generality. This is like asking whether consequentialism or deontology favors the Tories or New Labor. Second answer: virtue politics suggests the possibility of the reconfiguration of political space.

Happiness & Morality Aristotle’s theory makes eudaimonia the highest humanly achievable good. Other regarding virtues (justice, beneficence, liberality) are argued to be constitutive of happiness & not opposed to it. Fundamental difference between modern and ancient moral theory. Julia Annas, The Morality of Happiness.

Is this a positive or normative theory? Virtue jurisprudence is a normative theory of law. – Aretaic theory of legislation: what is the aim of law? – Aretaic theory of judging: what makes for excellent judging? Positive components: – Moral psychology – Account of the nature of law—embedded in a theory of the virtue of justice

Who are the phronomoi? The problem of identifying the practically wise. If practical wisdom is rare, how do we know who has it. Compounded by ideological & political disputes. Who would you ask for advice? Who would you trust in a real emergency? Who would you want as your Dean?

Against the Fairness Conception Justice is the disposition to act fairly, where the content is given by an antecedent theory of fairness. – Bernard Williams’s essay, “Justice as a Virtue.” The theory of fairness does all the work & threatens to swallow the rest of virtue ethics. The virtue does not do the necessary social work—first order, private judgments. For the lawfulness conception

For the Lawfulness Conception Normatively attractive: allows the virtue of justice to serve the function coordinating social behavior & enabling the rule of law. Has the features of a “virtue”: – Stable disposition. – Natural quality of well functioning humans. Qualification: not just any social norm counts as a nomos—must be internalizable by the phronomoi.must be internalizable by the phronomoi Against the fairness conception

Nomoi & Baselines Does the fairness conception of the virtue of justice assume “natural baselines”? Yes & No – Yes, in any given community, the nomoi provide baselines. That is the point of the lawfulness conception. – No, the baselines can vary both synchronically (across cultures) and diachronically (within cultures across time).

Fact of Judicial Disagreement Claim: – There is at least one legal issue (or concrete case) such that more than one resolution is legally correct. Reason: – Different phronomoi (fully virtuous judges) could decide the same issue or case differently. Pace Dworkin’s Right Answer Thesis: – In each and every case, there is one and only one legally correct resolution. Preserves Dworkin’s argument against Hart: – The phenomenology of judging is that law does not run out.

Spock, McCoy, and Kirk Hot-TemperedThe Virtue of Proates The Stoic Sage

Is Hercules really Solomon? If Hercules were to take “law as integrity” seriously, then he would need to internalize the nomoi. But Dworkin’s Hercules seems to set a very low threshold of “fit”. Hercules moves easily to the method of moral philosophy. Dworkin’s Hercules embraces the “fairness conception” of the virtue of justice.

Judicial Virtues and Vices: Thinking About Character Lawrence Solum September 2010.

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Judicial Virtues and Vices: Thinking About Character Lawrence Solum September 2010.

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